Immigration Issues/I am marrying an illegal immigrant

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Expert: Eileen Chun-Fruto - 12/15/2009

QuestionMy fiance was brought to the US from Mexico by his maternal grandmother when he was two (1983). She never adopted him nor has she ever filed any papers for him because she just became a US citizen in 09. He has never been to Mexico therefore he has never came across any immigration officers. He has attended school in the US his whole life and is currently enrolled in a Community College. He has never been arrested but has received two tickets for driving without a license in which he went to court and paid his ticket fine. We have been together for 5 years and recently got engaged two weeks ago. We are planning a wedding for Spring 2011 and would like to know what steps we will have to take to get his documents in order after our marriage.

AnswerEileen Chun-Fruto, Los Angeles immigration attorney writes:

Dear Nydia,

Congratulations on your engagement. As for your fiance's situation, the law as it stands today is really against harsh. If he was brought here without using a visa, there is no option for getting your fiance a greencard in the United States without him leaving the US and then getting stuck outside the US for 10 years.

This is called the 3 and 10 year bar and it is part of the immigration law that stands for the proposition: if someone enters the US and overstays their authorized period of time (or for someone who entered without a visa as a minor like your fiance) by more than 6 months, they won't be allowed back to the US for 3 years if they ever leave the US. If someone enters the US and overstays their authorized stay by 1 year or more, they won't be allowed back in the US for 10 years if they ever leave the US.

For applicants like your soon to be husband, he can apply for a "waiver" of the 10 year bar because he is married to you, a US citizen. BUT in order for the immigration service to allow him to come back before the 10 years, he DOES have to leave the US for processing AND YOU have to prove that you will suffer "extreme hardship," if he has to remain in Mexico.

This is called a 3 or 10 year waiver case. They are very difficult to prepare, so be ready to hire a lawyer. I've seen some couples do this themselves and they nearly always fail.

Experience

I have over 12 years of experience in business and family immigration. I was a former law clerk for the Executive Officer for Immigration Review (the immigration courts) in San Francisco and I current serve as the California Service Center's (CSC) liaison on behalf of the Los Angeles County Bar Association. I represent individuals and corporations alike, ranging from professionals in the high tech, science, liberal arts fields. I have a special niche in working with start-up companies and individuals with more complex immigration issues.

Education/CredentialsJ.D., University of California at Davis - King Hall School of Law (1997)
B.A., University of California at Irvine, cum laude (1994)

Awards and Honors2005, 2006, 2007, 2008: Selected to Southern California Rising Star - Super Lawyers List (an honor shared by no more than 2.5% of the attorneys practicing in the entire Southern California region)
Faculty/Moderator on various AILA and LACBA continuing legal education seminars in the following topics: H-1B, O-1, religious workers, business immigration visas

Past/Present ClientsMy typical business clients can range from a start-up company, established engineering and software research and development companies, manufacturing, trade and distribution companies, public and private schools, and religious organizations.
Family clients include spouses, parent-child petitions, siblings, naturalization, and most especially, representation of abandoned and neglected children viewed as orphans under the immigration law.
I have represented many clients who relied on special provisions of the immigration law to preserve or "grandfather" benefits to family members in limited (and complicated) circumstances, to avoid re-application fees and longer waiting times.